Proceedings in appellate courts are very different from those in trial courts, and each one of the appellate courts has their own set of rules and internal operating procedures. If you do not follow the rules carefully, you may lose the chance to have your appeal considered. In Part I of this article, we discussed some of the differences in the preparation of records and briefs in New York State's Appellate Division Third and Fourth Departments including "stipulation vs. certification", transfer proceedings and consolidating appeals. Other key differences, which attorneys practicing in these two courts should be aware of, are covered below.
Deadline for Perfecting an Appeal
The Appellate Division Fourth Department allows an appeal to be dismissed by motion after 60 days. As long as the appellant responds to such a motion, the Court will only issue a conditional dismissal requiring that the appeal be perfected by a certain date. If no motion has been made, the appeal is considered dismissed after nine months from the date of service of the notice of appeal without the necessity of a motion.
In the Appellate Division Third Department, the same motion procedure can occur where a motion to dismiss can be made after 60 days have passed. Again, as long as the attorney responds to that motion, the appeal will not be dismissed outright and, instead, a conditional dismissal will occur where the appeal must be perfected by a certain date. However, for practical purposes, it is very rare to see such a motion to dismiss made at the Third Department. It is a different situation at the Fourth Department where these motions are seen on a regular basis. At the Third Department, if a motion to dismiss has not been made, the appellant has nine months to perfect the appeal. However, the nine months count not from the date of service of the notice of appeal or the date of filing, but from the date that the attorney dates their notice of appeal. This can make the difference of a few very critical days when determining an absolute deadline.
Extensions of Time
While the motion process for an extension is similar in both courts, one key difference at the Appellate Division Third Department is that the Court will sometimes grant extensions of time for Respondent and Reply briefs without the necessity of making a written motion. A simple phone call will often result in an extension of at least a few days. This is not in the rules, but is simply a matter of practice. The Fourth Department, however, always requires that a written motion be made for an extension of time.
While not a part of the record on appeal, the Appellate Division Third Department does require the filing of a pre-calendar statement at the time that the notice of appeal is filed. The Fourth Department does not have such a requirement.
Traditionally, the Third and Fourth Departments both did not accept condensed transcripts in a record on appeal. As of last fall, however, the Fourth Department will accept condensed transcripts if they were submitted at the Court below in that format. The Third Department continues not to accept condensed transcripts.
The Appellate Division Fourth Department allows up to 70 pages for both the appellant and the Respondent briefs. The Third Department allows 70 pages for the appellant brief, yet only 35 pages for the Respondent brief. The Fourth Department allows 35 pages for a reply brief and the Third Department limits the reply brief to 15 pages.
Additionally, the Fourth Department only requires that the brief be at least 11 points, with no particular font required. The Third Department does not specify a particular font or point size, but they prefer 14-point print. The Fourth Department requires a Table of Authorities which is not required at the Third Department, but it is strongly recommended. While there are particular colored cover requirements for briefs at the Fourth Department, covers at the Third Department are all white.
The instances cited herein are just some of the major differences between the Appellate Division Third and Fourth Departments, and there are other instances that do occur. Counsel Press provides the experience, quality and service in these courts that you cannot find in any other appellate services provider in the nation. Robert Brucato is an admitted attorney in the Fourth Department, and he has been working in the appellate field for over 21 years, primarily in the Third and Fourth Departments. LaFon Howard, manager of Counsel Press' printing facility in Rochester, NY, has been in the appellate field for over 30 years. That’s over 50 years of knowledge and experience right here in Western New York.
Counsel Press is always available to discuss any question that you may have regarding the appellate rules at these and other courts.